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Statute Which Elevates Criminal Possession of a Weapon to a C Felony, Even When Possession is in the Home, Does Not Violate the Second Amendment

In a full-fledged opinion by Judge Smith, the Court of Appeals determined that the statute which elevates possession of a weapon when previously convicted of a crime to a class C felony, even if possession is in the home, did not violate the Second Amendment right to bear arms:

Intermediate scrutiny requires us to ask whether a challenged statute bears a substantial relationship to the achievement of an important governmental objective (Clark v Jeter, 486 US 456, 461 [1988]).  Penal Law § 265.03 (3), making it a class C felony for anyone previously convicted of any crime to possess an unlicensed, loaded firearm in his home or elsewhere, easily passes this test.  The statute does not, it must be remembered, forbid anyone convicted of any misdemeanor from possessing a gun on pain of class C felony punishment; most misdemeanants — including the present defendant, assuming that resisting arrest was his only prior crime — are eligible for licenses to have guns in their homes.

It is beyond dispute that preventing the criminal use of firearms is an important government objective; and keeping guns away from people who have shown they cannot be trusted to obey the law is a means substantially related to that end.  More specifically, to punish severely a convicted criminal who, though eligible for a license, again violates the law by obtaining an unlicensed gun is a means well-suited to the end of assuring that lawbreakers do not have firearms.  People v Hughes, 184, CtApp 11-19-13

 

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